IMF Covenant precedent ensures CIL use in international cooperation

General Principles of International Law, Obligations Erga Omnes and Jus Cogens¶ Commentators have mentioned a number of legal bases for the proposition that the Covenant, or the norms included in it, are applicable to the IMF directly as a subject of international law.18¶ Customary International Law¶ One such basis would be the view that the norms contained in the Covenant are now part of general or customary international law. It has been argued that, even in the absence of any consent on the part of an international organization, its freedom to act in the pursuit of its mandated objectives may be constrained by international law norms. Under this argument, such norms would not operate to change the objectives of the international organization set out in its constituent instrument, but to limit in some way the actions that the organization could legitimately take in pursuit of such objectives.19 It has been suggested that a similar reasoning should be applied to human rights generally, and that the international financial organizations have in this respect a “duty of vigilance” to ensure that their actions do not have negative effects on the human rights situation of their borrowing members.20¶ The applicability of this line of reasoning to the Covenant (or the rights set out in it) would depend initially on a finding that the norms it contains are part of general international law.21 It has been stated that the Universal Declaration “is now part of the customary international law of nations and therefore binding on all States.”22 Others have gone only so far as to state that some human rights have attained such status, and the examples they give are in the area of political and civil rights.23 The various pronouncements of the International Court of Justice on human rights would seem to support this second view.24 The most that can be said in this regard is that it is not generally accepted that the Covenant (or the norms contained in it) form part of general or customary international law.¶ Since the norms contained in the Covenant have not reached the status of norms of general international law, it would be difficult to sustain that they impose themselves to the IMF in some other fashion, either as obligations erga omnes, or as part of jus cogens. Nevertheless, it may be useful to consider these two points briefly.¶ Obligations Erga Omnes¶ Under this heading, the view would be taken that certain obligations, including certain human rights obligations, would be owed “to the entire international community.”25 The origin of this theory is to be found in the Barcelona Traction case and the distinction the International Court of Justice drew, obiter dictum, between the obligations a State owes to the international community as a whole and those arising vis-à-vis another State.26 A discussion of this complex topic would be well beyond the scope of this paper. Suffice it to state that the scholarly opinion does not seem to have reached a consensus around the idea that human rights other than those enumerated by the International Court of Justice have attained the status of obligations erga omnes.27 The reservation in Article 24 of the Covenant concerning the charters of the specialized agencies would support this conclusion.¶ Jus Cogens¶ “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.”28 As in the case of obligations erga omnes, there is no evidence that economic and social rights have reached the status of norms of jus cogens.29 Article 24 of the Covenant leads to the same conclusion.¶ In any event, Article 24 of the Covenant shows that the Covenant was not intended to supersede the charters of the specialized agencies. In order for any norm of the Covenant to become binding on an international organization, the organization would in effect need to modify its constituent instrument. To the extent the international organization could not give effect to the norm without doing violence to its constituent instrument, the norm would not prevail over the constituent instrument. With respect to the IMF, the social rights to health or education, for example, lie outside its mandate. Finally, questions would also arise concerning the contents of such an obligation. This issue is discussed below in the context of the discussion of the possible obligation of the IMF not to hinder the implementation of its members’ own international obligations. It may thus be concluded that the Covenant is not a treaty that is binding on the IMF, and thus it has no direct effect on the IMF.¶ Indirect Effect of the Covenant¶ Under this view, the members of the IMF that are party to the Covenant would have an obligation to seek the implementation of the Covenant not only in their bilateral relations with other parties, but also through their actions in international organizations. The terms of the Covenant do not limit the duty to cooperate internationally to cooperation with other States parties or with States in general. The duty is general and, if the interpretation made of it by the Committee on Economic, Social and Cultural Rights is shared by the States parties, the duty would include cooperation with international organizations and cooperation within international organizations. The Committee appears to have recently taken the view that States parties to the Covenant have a duty to ensure that the policies and decisions of the international financial organizations of which they are members are in conformity with the obligations of States parties to the Covenant.¶ The manner in which this indirect effect would affect an international organization may vary depending on the country involved. First, all States parties would be under a general obligation to seek, in the international organizations in which they are members, the adoption of policies conducive to the achievement of the rights set out in the Covenant in the territories of all States parties. Such a duty would fall particularly on the States parties that are thought to have some influence on the policies of the international organizations.30 Second, a State party receiving technical or financial assistance from an international organization would be under a separate duty to ensure that the program it undertakes with such assistance is consistent with its obligations under the Covenant. Conversely, the international organization would have a duty to ensure that it did not hinder the State party’s ability to implement the Covenant. In a few recent instances, the Committee has commented on the need to ensure that a country’s obligations under the Covenant “be taken into account” in all aspects of the country’s negotiations with international financial institutions “to ensure that economic, social and cultural rights, particularly of the most vulnerable groups of society, are not undermined.”31 These two aspects of the question will be examined in turn.